IS THE ROBERTS COURT ESPECIALLY ACTIVIST?
A STUDY OF INVALIDATING (AND UPHOLDING) FEDERAL, STATE, AND LOCAL LAWS

Published in the Emory Law Journal 61: 737-758
(Prepared for the 2011 Randolph Thrower Symposium, Emory Law School)

Lee Epstein
Andrew D. Martin

Introduction

Is the Roberts Court especially activist or, depending on your preference, especially lacking in judicial self-restraint? If we define judicial self-restraint as a reluctance to declare legislative action unconstitutional, and confine the analysis to the 1969-2009 terms, the answer is no. The Roberts Justices, just as their immediate predecessors, are neither uniform activists nor committed restraintists. Rather, the Justices’ votes to strike (and uphold) statutes seem to reflect their political preferences toward the policy content of the law, and not an underlying preference for restraint (or activism).

In a nutshell, liberal justices tend to invalidate conservative laws and conservative justices, liberal laws. This holds regardless of whether we examine all the Justices’ votes simultaneously or each Justice individually.

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